Self v. Social Security Administration, Commissioner
MEMORANDUM OPINION. Signed by Judge Abdul K Kallon on 2/4/2014. (PSM)
2014 Feb-04 AM 10:10
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
JIMMY LEE SELF,
CAROLYN W. COLVIN,
Acting Commissioner of
Civil Action No.:
Jimmy Lee Self brings this action pursuant to Section 205(g) of the Social
Security Act (“the Act”), 42 U.S.C. § 405(g), seeking review of the final adverse
decision of the Commissioner of the Social Security Administration (“SSA”). This
court has reviewed the Administrative Law Judge’s (ALJ) decision, which has
become the final decision of the Commissioner. For the reasons stated below,
specifically the ALJ’s failure to discuss the Listing 12.05 requirements, the ALJ’s
decision is REMANDED for further proceedings consistent with this opinion.
I. PROCEDURAL HISTORY
On September 17, 2007, Self applied for disability insurance benefits and
Supplemental Security Income under Title II and Title XVI of the Act. Self
originally alleged disability beginning on November 15, 2002 because of a back
injury, depression and mental retardation. The Commissioner denied the claims
initially and on reconsideration. (R. 13, 97). Self filed a timely request for a
hearing before an Administrative Law Judge, which the ALJ held on September
18, 2009. (R. 411). At the hearing, Self amended his alleged onset date to
September 20, 2006. (R. 77). As a result, the ALJ ordered that Self undergo two
consultative examinations to supplement the record. (R. 428–29). Thereafter, ALJ
held a supplemental hearing on March 4, 2010, (R. 432), during which Self
amended his alleged onset date to September 17, 2007. (R. 79). Because Self was
last insured on September 30, 2006, he abandoned his claim for disability
insurance benefits. (R. 435).
Self has a sixth grade education and was thirty-nine at the time of the second
administrative hearing. (R. 439, 437). His past work experience includes
employment as a warehouse worker, furniture assembler, mobile home assembler,
and dry wall installer helper. (R. 25). Self originally alleged disability due to back
pain and depression. (R. 97). However, at the second administrative hearing, Self
further alleged disability because of mental retardation under the listing in §
12.05(C). (R. 436).
In a decision dated April 2, 2010, the ALJ found that Self was not disabled
as defined by the Social Security Act, and thus was ineligible for Supplemental
Security Income. (R. 27). On January 13, 2012, the Appeals Council denied Self’s
request for review; consequently, the ALJ’s decision became the final decision of
the Commissioner of the Social Security Administration. (R. 5–7). Self has
exhausted his administrative remedies, and this court has jurisdiction pursuant to
42 U.S.C. §§ 405(g) and 1383(c)(3). For the reasons stated below, this court
REVERSES and REMANDS the decision of the Commissioner.
II. STANDARD OF REVIEW
The standard for reviewing the Commissioner’s decision is limited. This
court must affirm the Commissioner’s decision if the Commissioner applied the
correct legal standards and if the factual conclusions are supported by substantial
evidence. See 42 U.S.C. § 405(g); Graham v. Apfel, 129 F.3d 1420, 1422 (11th
Cir. 1997); Walker v. Bowen, 826 F.2d 996, 999 (11th Cir. 1987). However, “[n]o .
. . presumption of validity attaches to the [Commissioner’s] legal conclusions,
including determination of the proper standards to be applied in evaluating
claims.” Walker, 826 F.2d at 999. This court does not review the Commissioner’s
factual determinations de novo. The court will affirm those factual determinations
that are supported by substantial evidence. “Substantial evidence” is “more than a
mere scintilla. It means such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401
The court must “scrutinize the record in its entirety to determine the
reasonableness of the [Commissioner]’s factual findings.” Walker, 826 F.2d at
999. A reviewing court may not look only to those parts of the record that support
the decision of the ALJ, but instead must view the record in its entirety and take
account of evidence that detracts from the evidence relied on by the ALJ.
Hillsman v. Bowen, 804 F.2d 1179 (11th Cir. 1986).
III. STATUTORY AND REGULATORY FRAMEWORK
To qualify for disability benefits, a claimant must show “the inability to
engage in any substantial gainful activity by reason of any medically determinable
physical or mental impairment which can be expected to result in death or which
has lasted or can be expected to last for a continuous period of not less than twelve
months.” 42 U.S.C. § 423(d)(1)(A); 42 U.S.C. § 416(i)(I)(A). A physical or
mental impairment is “an impairment that results from anatomical, physiological,
or psychological abnormalities which are demonstrated by medically acceptable
clinical and laboratory diagnostic techniques.” 42 U.S.C. § 423(d)(3).
Determination of disability under the Act requires a five step analysis. 20
C.F.R. § 404.1520(a)–(f).
Specifically, the Commissioner must determine in
whether the claimant is currently unemployed;
whether the claimant has a severe impairment;
whether the impairment meets or equals one listed by the
whether the claimant is unable to perform his or her past work;
whether the claimant is unable to perform any work in the
McDaniel v. Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986).
answer to any of the above questions leads either to the next question, or, on steps
three and five, to a finding of disability. A negative answer to any question, other
than step three, leads to a determination of ‘not disabled.’” Id. at 1030 (citing 20
C.F.R. § 416.920(a)–(f)). “Once a finding is made that a claimant cannot return to
prior work the burden shifts to the Secretary to show other work the claimant can
do.” Foote v. Chater, 67 F.3d 1553, 1559 (11th Cir. 1995) (citation omitted).
The court turns now to Self’s contention that the ALJ erred by applying the
incorrect legal standard when determining that Self did not meet the requirements
of § 12.05(C) in the Listing of Impairments.1 To qualify as a disability under §
Self also challenges the ALJ’s findings regarding his back ailments. Specifically, Self contends that the ALJ erred
in discrediting the opinion of treating physician Dr. David A. Justice that Self’s back condition rendered him
permanently disabled. As it relates to Self’s back impairments, the record shows that on April 21, 2000, after
conducting an MRI of Self’s lumbar spine, Dr. Roger A. Ray reported that Self has a “rather large herniated disc at
L5.” (R. 146) Shortly thereafter, on May 1, 2000, Dr. Ray also reported that an MRI of Self’s cervical spine looked
“satisfactory.” (R. 145). On May 10, 2000, Self underwent a lumbar microdiscectomy. Id. At Self’s request, Dr.
Ray released him to full work without restrictions on July 12, 2000. (R. 142). On October 18, 2006, Self went to
physical therapy for back pain and reported that the pain was a two on a one-to-ten scale after the therapy. (R. 155).
12.05(C), the plaintiff’s condition must “satisf[y] the diagnostic description in the
introductory paragraph [of § 12.05].” 20 C.F.R. Pt. 404, Subpart P, App. 1 §
12.00(A) (1992). The introductory paragraph requires “significantly subaverage
general intellectual functioning with deficits in adaptive functioning initially
manifested during the developmental period.” 20 C.F.R. Pt. 404, Subpart P, App. 1
§ 12.05 (1992). Then, the plaintiff must demonstrate “[a] valid verbal,
performance, or full scale IQ of 60 through 70 and a physical or other mental
impairment imposing an additional and significant work-related limitation of
function.” 20 C.F.R. Pt. 404, Subpart P, App. 1 § 12.05(C).
Here, the record shows that in February of 1986, when Self was fifteen,
Barney R. Bell performed a psychological assessment of Self for the Marion
County School System. Self obtained a verbal score of 73, a performance score of
88 and a full scale intelligence quotient of 79. Based on the results, Mr. Bell opined
Thereafter, on May 25, 2007, Self went to the Northwest Medical Center with lower back pain. Self was prescribed
Oxycontin and Flexeril. (R. 175-77). On September 12, 2007, Self was treated for an overdose of Seroquel. (R.
186). On December 12, 2007, Dr. George A. Evans performed a consultative examination of Self and diagnosed
him with back pain with radiation to his lower legs and depression. (R. 232). Dr. Chaketa Guinn performed a
Physical Residual Functional Capacity Assessment on January 24, 2008. She concluded that Self's alleged
limitations were only partially credible because the objective findings indicated only a moderate impairment. (R.
Relevant to Self’s contentions regarding the ALJ, between February 2006 and April 2009, Dr. Justice treated Self for
his back pain with regular check-ups and prescription refills. (R. 275–354). Critically, although records associated
with Dr. Justice’s treatment indicate Self reported severe back pain, for which Dr. Justice prescribed medication,
including oxycontin and Flexeril, see e.g., (R. 337), they do not contain sufficient medical evidence to support the
conclusion that Self suffered from a debilitating condition. Nonetheless, on May 30, 2008, Dr. Justice reported to
the Alabama Food Stamp Program that Self was physically unable to work and that the condition was likely
permanent. (R. 298). Based on the record as a whole, which does not support Dr. Justice’s contentions, the court
finds that the ALJ correctly discredited Dr. Justice’s opinion. See Phillips v. Barnhart, 357 F.3d 1232, 1241 (11th
Cir. 2004) (stating that “good cause” exists for disregarding a treating physician’s opinion when the “treating
physician’s opinion was not bolstered by the evidence”).
that Self functioned in the dull normal range and recommended that Marion
County place Self in regular classes. (R. 374–75).
The next reference to Self’s mental state occurred after Self’s September 12,
2007 overdose, when Dr. Marianna Barnes diagnosed Self with major depression.
(R. 202). On December 5, 2007, Dr. Charles E. Houston, Jr. also diagnosed Self
with depression, and further stated that Self likely functioned in the borderline
intellectual range because he only completed the seventh grade2 and was in three
special education classes. Dr. Houston opined that Self’s activities were
moderately restricted and that he was “somewhat capable of independent
functioning.” (R. 245–48). Almost a month later, Dr. Aileen McAlister performed
a Psychiatric Review and also concluded that Self functioned in the borderline
intellectual range. (R. 261). The final entry related to Self’s mental state occurred
on October 27, 2009, when Dr. John R. Haney performed a consultative
examination, which revealed that Self had a full scale IQ score of 64, a verbal scale
score of 66, and a performance scale score of 69. Based on these findings, Dr.
Haney diagnosed Self with mild mental retardation. (R. 355–57).
In finding the Self was not disabled, first, the ALJ found that Self had not
engaged in any substantial gainful activity since the alleged onset of his disability.
Next, he found that Self suffered the following severe impairments: degenerative
While Dr. Houston stated that Self had completed the seventh grade, Self testified he had only completed the sixth.
disc disease, chronic back pain radiating to the left leg, depression, a learning
disorder, borderline intellectual functioning, and substance abuse in remission. (R.
16). The ALJ determined that none of these conditions manifested the specific
signs and diagnostic findings required by the Listing of Impairments. However, the
ALJ did not mention the requirements of the § 12.05(C) listing. Instead, the ALJ
merely cited Self’s high school IQ test and Mr. Bell’s recommendation that Self
continue in regular classes. (R. 21).
Next, the ALJ found that Self had the RFC to perform light work and further
limited him to lifting no more than twenty pounds, sitting for only two hours at a
time, standing for only one hour at a time, and walking for only thirty minutes at a
time. He also stated Self had a moderate ability to understand and execute simple
instructions, to make judgments on simple work-related decisions, to interact
appropriately with the public, and to react to workplace changes. He determined
that Self had marked limitations in his ability to understand and execute complex
instructions and make judgments on complex work-related decisions. (R. 22).
In making this finding, the ALJ found that Self’s testimony was not credible
to the extent it differed with his RFC determination. The ALJ cited inconsistencies
in Self’s prior statements, gaps in treatment, and the objective medical evidence to
support his credibility determination. Further, the ALJ gave little weight to the
opinions of consultative examiner Dr. Haney. He cited Dr. Haney’s observation
that Self gave up on the more difficult test items. Based on these findings and the
vocational expert’s testimony, the ALJ determined that Self could not perform any
past relevant work but could perform jobs that exist in significant number in the
national economy. Thus, the ALJ determined that Self was not disabled under the
Act. (R. 24–26).
After careful review, the court concludes that the ALJ applied the incorrect
legal standards. To be considered disabled under § 12.05(C), Self must meet the
introductory paragraph’s definition of mental retardation, 20 C.F.R. Part 404,
Subpart P, Appendix 1 § 12.00(A) (1992), which requires that “a plaintiff must at
least (1) have significantly subaverage general intellectual functioning; (2) have
deficits in adaptive behavior; and (3) have manifested deficits in adaptive behavior
before age 22.” Crayton v. Callahan, 120 F.3d 1217, 1219 (11th Cir. 1997).
Evidence of a deficit in adaptive behavior after age twenty-two creates a rebuttable
presumption that Self “manifested a mental disability prior to age twenty-two.”
Hodges v. Barnhart, 276 F.3d 1265, 1269 (11th Cir. 2001).
Next, assuming a claimant meets the introductory requirement, he must then
demonstrate “[a] valid verbal, performance, or full scale IQ of 60 through 70 and a
physical or other mental impairment imposing an additional and significant workrelated limitation of function.” 20 C.F.R. Pt. 404, Subpart P, App. 1 § 12.05(C).
The Eleventh Circuit has held that the ALJ can properly “consider … multiple IQ
scores generated by different test administrations.” Wilbon v. Comm'r of Soc. Sec.,
181 F. App’x 826, 829 (11th Cir. 2006).
However, the regulations for determining disability in children provide that
“IQ test results obtained between ages 7 and 16 should be considered current for . .
. 2 years when the IQ is 40 or above.” 20 C.F.R. Pt. 404, Subpart P, App. 1 §
112.00(D)(10) (1992). Courts have applied this standard in adult disability cases
and determined that a non-current IQ test is not a valid indication of a plaintiff’s
IQ. See Stutts v. Astrue, 489 F. Supp. 2d 1291, 1293 (N.D. Ala. 2007) (“Because
these IQ scores were achieved before the plaintiff reached the age of 16, they are
not deemed to be valid as to the plaintiff’s current level of intellectual
functioning.”); Lewis v. Astrue, CIV.A. 08-0583-CB-M, 2009 WL 1904319, at *3
(S.D. Ala. July 1, 2009) (affirming the Commissioner’s decision not to rely on a
non-current IQ test).
In finding that Self did not meet a listed impairment, the ALJ did not discuss
the § 12.05(C) requirements, either those in § 12.05(C) itself or in the introductory
paragraph. Rather, he merely cited Self’s 1986 IQ test and the examiner’s
statements. He neither mentioned nor discussed Self’s 2009 IQ test. Because Self
was only fifteen at the time of the 1986 test, the 1986 IQ test is not a current
measure of Self’s intellectual abilities. See Stutts, 489 F. Supp. 2d at 1293. Thus,
the ALJ erred by relying solely on an invalid IQ test in his § 12.05(C) finding.
In reaching this conclusion, the court notes that the ALJ did mention and
briefly discuss the 2009 IQ test when discrediting Dr. Haney’s opinion. (R. 24, 25).
In fact, throughout the opinion, the ALJ also cited facts that might have been used
to find Self did not meet the § 12.05(C) requirements, notwithstanding the 2009 IQ
test results. See Lowery v. Sullivan, 979 F.2d 835, 837 (11th Cir. 1992) (citing
Popp v. Heckler, 779 F.2d 1497, 1499 (11th Cir. 1986) (“[A] valid I.Q. score need
not be conclusive of mental retardation where the I.Q. score is inconsistent with
other evidence in the record on Self's daily activities and behavior.”). Although
these facts, if fully analyzed, may well support a similar determination by the ALJ
on remand, the current record does not permit the court to reach such a conclusion.
As the Eleventh Circuit has made clear, this court will not “affirm simply because
some rationale might have supported the ALJ's conclusion.” Owens v. Heckler, 748
F.2d 1511, 1516 (11th Cir. 1984). Therefore, on remand, the ALJ should apply the
proper legal standard in determining whether Self’s mental disability meets the
requirements of § 12.05(C).
For the reasons stated above, this court concludes that the ALJ did not apply
the correct legal standard in assessing whether Self’s condition meets the
requirements of § 12.05(C). Therefore, the Commissioner’s decision is to be
REVERSED and REMANDED. The court will enter a separate order to that
DONE this the 4th day of February 2014.
ABDUL K. KALLON
UNITED STATES DISTRICT JUDGE
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